93 Decision Citation: BVA 93-09042
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-14 654 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) evaluation for non-Hodgkins
lymphoma, diffuse, large-cell type, involving the right tonsil and
right cervical node, status post right tonsillectomy and node
excision.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Loeb, Counse
INTRODUCTION
The veteran served on active duty from August 1966 to August 1968.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from a November 1991 rating decision of the Roanoke, Virginia,
Regional Office (RO), which reduced the veteran's 100 percent
evaluation for non-Hodgkins lymphoma, which had been in effect since
June 6, 1990, to a noncompensable evaluation, effective October 1,
1991. The veteran's notice of disagreement was received by the
Department of Veterans Affairs (VA) in February 1992. A statement of
the case was issued in April 1992, and the veteran's substantive
appeal was received in June 1992. This case was docketed at the Board
in August 1992. The veteran has been represented throughout his
appeal by Disabled American Veterans, which submitted additional
written argument in December 1992.
It was contended on behalf of the veteran in December 1992 that he
should receive special monthly compensation for impotency under the
provisions of 38 C.F.R. § 3.350(a)(1)(c) (1992). Since this issue has
not been developed for appellate review and is not inextricably
intertwined with the certified issue on appeal, it
is referred to the RO for appropriate action.
REMAND
It was noted on behalf of the veteran in December 1992 that, although
the veteran has been seeing Daniel Ketcher, M.D., for his service-
connected non-Hodgkins lymphoma since June 1990, these treatment
records are not currently on file. We agree that these records need
to be obtained prior to a decision in this case.
Because the Board finds that the veteran's claim is well-grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), the VA has a
duty to assist him in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1992). This duty has
been confirmed by several decisions of United States Court of Veterans
Appeals. Consequently, because the Board finds that additional
development is required prior to final disposition of this case, the
case is being REMANDED to the RO for the following actions:
1. The veteran should be permitted to submit
any additional evidence that is pertinent to the
issue on appeal. He should also be asked to
provide the name and address of any physician or
treatment facility, including the VA, that has
provided treatment for residuals of his non-
Hodgkins lymphoma since July 1991. Any medical
provider identified should be asked to provide
copies of the veteran's clinical records. Any
records obtained as a result of the above
actions should be associated with the claims
folder. The veteran should be asked to sign any
necessary consent forms for release of his
private medical records.
2. The RO should contact Dr. Ketcher at
2296 Opitz Boulevard, Woodbridge, Virginia
22191, and obtain copies of the veteran's
clinical records since June 1990, which should
be associated with the claims folder. The
veteran should be asked to sign any necessary
consent form for release of these records.
3. The veteran should be given an examination
to determine the current extent of any residuals
of his service-connected non-Hodgkins lymphoma.
The veteran's weight and temperature should be
recorded. All necessary tests and studies,
including a blood count for anemia, should be
obtained. All findings should be reported in
detail. The claims folder must be made
available for study prior to the examination.
When the above actions have been completed, the case should again be
reviewed by the RO. If the benefit sought is not granted, the veteran
and his representative should be given a copy of a new supplemental
statement of the case and an opportunity to respond thereto. The case
should then be returned to the Board for further appellate
consideration. The veteran need take no action until notified by the
RO. The Board does not intimate any opinion as to the ultimate
determination warranted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional Member to the Section when the Section is composed of
fewer than three Members due to absence of a Member, vacancy on the
Board or inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section proceed with
the transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).